CARATTI and COMMISSIONER OF STATE REVENUE
[2016] WASAT 85
•20 JULY 2016
CARATTI and COMMISSIONER OF STATE REVENUE [2016] WASAT 85
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 85 | |
| TAXATION ADMINISTRATION ACT 2003 (WA) | |||
| Case No: | DR:229/2015 | 31 MAY 2016 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 20/07/16 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN MICHAEL CARATTI COMMISSIONER OF STATE REVENUE |
Catchwords: | Land tax Exemption Private residential property Primary residence Executor of will Right under a will to use property as a place of residence Right to future ownership under a will |
Legislation: | Business Tax Review (Assessment) Act 2003 (WA), s 8 Interpretation Act 1984 (WA), s 9, s 19 Land Tax Assessment Act 1976 (WA) Land Tax Assessment Act 2002 (WA), s 5, s 7, s 17, s 19, s 20, s 21, s 22, s 23A, cl 1 Land Tax Assessment Bill 2001 (WA) Revenue Laws Amendment Act 2008 (WA), s 12 Revenue Laws Amendment Bill 2008 (WA) State Administrative Tribunal Act 2004 (WA), s 27, s 29 Taxation Administration Act 2003 (WA), s 13, s 16, s 40 Trustees Act 1962 (WA), s 24, s 24(2), s 27, s 27(1)(c) |
Case References: | Charles Lloyd Property Group Pty Ltd v Commissioner of State Revenue (2011) 84 ATR 775 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211 Commissioner of State Revenue v Landrow Properties Pty Ltd (2010) 79 ATR 800 Commissioner of the Australian Federal Police v Courtenay Investments Ltd [No 2] [2014] WASC 55 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 Hatzantonis v Lawrence [2003] NSWSC 914 O'Brien v Warburton [2012] WASC 82 Perrin v Morgan [1943] AC 399 Re Crowther [1895] 2 Ch 56 |
Orders | 1. The applicant's application is dismissed. |
Summary | Mrs Loretta Caratti owned certain property in Salter Point which had been exempt from land tax on the basis that it was her and her family's primary residence. Mrs Caratti passed away in May 2012. Since then, the applicant, who is the late Mrs Caratti's widower, and one of his sons have both continued to occupy the property as their primary residence.,The Commissioner, upon learning of Mrs Caratti's death, reassessed the property for land tax for the 2013/2014 assessment year and issued an original assessment for the 2014/2015 assessment year.,The applicant objected and the Commissioner disallowed the objection. The applicant then applied to the Tribunal for a review of that decision.,The applicant's claim is that the property is exempt from land tax under the Land Tax Assessment Act 2002 (WA) because he and one of his sons had a right to use the property under Mrs Caratti's will as a place of residence and he and his son used the property as their primary residence. Alternatively, the applicant argued that, in terms of the Act, because his son was entitled at a fixed or ascertainable future time to ownership of a one quarter share of the property, the property is exempt to the extent of a one quarter share.,The Commissioner argued, and the Tribunal agreed, that the applicant and his son did not have a 'right under' the will to use the property as a place of residence and therefore the relevant exemption did not apply. Instead, the Tribunal considered that the use of the property by the applicant and his son as their residence was as a result of an exercise of a power by the executor in accordance with the spoken wishes of his late wife. The will itself made no provision for the occupation of the property by the applicant and his son as a place of residence.,The Tribunal also considered that the applicant's argument that the applicant's son was entitled under the will at a future date to ownership of a share of the property also failed. Under the will, the applicant's son was entitled immediately to a conveyance of the property, not at some future date.,The Tribunal considered that the Commissioner's decision was correct and dismissed the applicant's application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : TAXATION ADMINISTRATION ACT 2003 (WA) CITATION : CARATTI and COMMISSIONER OF STATE REVENUE [2016] WASAT 85 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 31 MAY 2016 DELIVERED : 20 JULY 2016 FILE NO/S : DR 229 of 2015 BETWEEN : JOHN MICHAEL CARATTI
- Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Land tax Exemption Private residential property Primary residence Executor of will Right under a will to use property as a place of residence Right to future ownership under a will
Legislation:
Business Tax Review (Assessment) Act 2003 (WA), s 8
Interpretation Act 1984 (WA), s 9, s 19
Land Tax Assessment Act 1976 (WA)
Land Tax Assessment Act 2002 (WA), s 5, s 7, s 17, s 19, s 20, s 21, s 22, s 23A, cl 1
Land Tax Assessment Bill 2001 (WA)
Revenue Laws Amendment Act 2008 (WA), s 12
Revenue Laws Amendment Bill 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Taxation Administration Act 2003 (WA), s 13, s 16, s 40
Trustees Act 1962 (WA), s 24, s 24(2), s 27, s 27(1)(c)
Result:
Application dismissed
Summary of Tribunal's decision:
Mrs Loretta Caratti owned certain property in Salter Point which had been exempt from land tax on the basis that it was her and her family's primary residence. Mrs Caratti passed away in May 2012. Since then, the applicant, who is the late Mrs Caratti's widower, and one of his sons have both continued to occupy the property as their primary residence.
The Commissioner, upon learning of Mrs Caratti's death, reassessed the property for land tax for the 2013/2014 assessment year and issued an original assessment for the 2014/2015 assessment year.
The applicant objected and the Commissioner disallowed the objection. The applicant then applied to the Tribunal for a review of that decision.
The applicant's claim is that the property is exempt from land tax under the Land Tax Assessment Act 2002 (WA) because he and one of his sons had a right to use the property under Mrs Caratti's will as a place of residence and he and his son used the property as their primary residence. Alternatively, the applicant argued that, in terms of the Act, because his son was entitled at a fixed or ascertainable future time to ownership of a one quarter share of the property, the property is exempt to the extent of a one quarter share.
The Commissioner argued, and the Tribunal agreed, that the applicant and his son did not have a 'right under' the will to use the property as a place of residence and therefore the relevant exemption did not apply. Instead, the Tribunal considered that the use of the property by the applicant and his son as their residence was as a result of an exercise of a power by the executor in accordance with the spoken wishes of his late wife. The will itself made no provision for the occupation of the property by the applicant and his son as a place of residence.
The Tribunal also considered that the applicant's argument that the applicant's son was entitled under the will at a future date to ownership of a share of the property also failed. Under the will, the applicant's son was entitled immediately to a conveyance of the property, not at some future date.
The Tribunal considered that the Commissioner's decision was correct and dismissed the applicant's application.
Category: B
Representation:
Counsel:
Applicant : Mr J Davies
Respondent : Ms R Panetta
Solicitors:
Applicant : Michael Caratti Barrister and Solicitor
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Charles Lloyd Property Group Pty Ltd v Commissioner of State Revenue (2011) 84 ATR 775
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211
Commissioner of State Revenue v Landrow Properties Pty Ltd (2010) 79 ATR 800
Commissioner of the Australian Federal Police v Courtenay Investments Ltd [No 2] [2014] WASC 55
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257
Hatzantonis v Lawrence [2003] NSWSC 914
O'Brien v Warburton [2012] WASC 82
Perrin v Morgan [1943] AC 399
Re Crowther [1895] 2 Ch 56
Background and introduction
1 In 1988, Mrs Loretta Caratti became the registered proprietor of a property at 11 Sulman Avenue, Salter Point and in 1990 she became the registered proprietor of an adjoining property at 12 Klem Avenue, Salter Point (together the properties).
2 For land tax purposes under the Land Tax Assessment Act 2002 (WA) (LTA Act), the properties were treated by the respondent (Commissioner) as a single property or 'parcel' and were exempt from land tax on the basis that the properties were being used by Mrs Caratti as her primary residence.
3 Mrs Caratti passed away on 12 May 2012. Under her will executed in 1996 (Will), she left her property to her husband, the applicant, as trustee to establish a fund for the benefit of her children. On 19 June 2012 probate of the Will in common form was granted to the applicant.
4 The residential exemption continued to be applied to the properties until January 2015, when, following an audit, the Commissioner learned that Mrs Caratti had passed away. The applicant as executor then applied for an exemption from land tax pursuant to s 22 of the LTA Act.
5 In February 2015, the Commissioner disallowed the exemption and reassessed land tax in relation to the 2013/2014 assessment year. The Commissioner also issued an original assessment for the 2014/2015 assessment year.
6 In April 2015, the applicant objected to the Commissioner's decision of February 2015. The basis of the applicant's objection was that it was Mrs Caratti's wishes that he and Mr Michael Caratti (a son of the applicant and of the late Mrs Caratti) should live at the properties for 'as long as we wish' and that under the LTA Act the exemption should therefore continue to apply.
7 The objection was disallowed by the Commissioner and the applicant on 10 July 2015 applied to the Tribunal under s 40 of the Taxation Administration Act 2003 (WA) (TA Act) for a review of that decision.
Proceedings in the Tribunal
8 Upon the application being received by the Tribunal, the parties agreed to programming orders.
9 The Commissioner filed her statement of facts, issues and contentions and bundle of documents on 28 October 2015. The applicant filed his statement of facts, issues and contentions on 11 November 2015. The Commissioner then filed a written reply to the applicant's statement on 25 November 2015.
10 The matter proceeded to a final hearing on 31 May 2016. The Tribunal's decision was reserved on that date.
Facts
11 The relevant facts in this matter are agreed between the parties and are set out in the Commissioner's statement of facts, issues and contentions at paragraphs 1 to 19 as follows.
12 On 29 July 1988, Mrs Loretta Caratti became the registered proprietor of 11 Sulman Avenue, Salter Point and on 25 October 1990 she became the registered proprietor of an adjoining property at 12 Klem Avenue.
13 11 Sulman Avenue had been exempt from land tax since 30 June 1989 on the basis of the primary place of residence exemption.
14 12 Klem Avenue had also been exempt from land tax since 30 June 1998 on the basis that the Commissioner accepted the properties were being used as a 'parcel' within the meaning of the Land Tax Assessment Act 1976 (WA) (1976 Act) and the LTA Act and that the 'parcel' was being used as Mrs Loretta Caratti's primary place of residence.
15 On 1 April 1996, Mrs Loretta Caratti executed the Will (respondent's bundle of documents pages 24 to 30). The Will appointed the applicant as her Executor and Trustee and stated amongst other things:
I GIVE DEVISE AND BEQUEATH all my property both real and personal of whatsoever kind and wheresoever situate and not hereinbefore otherwise disposed of to my Trustee UPON TRUST to sell call in and convert into money and to pay my just debts funeral and all estate and succession duties whether state or federal upon the whole of my dutiable estate and the residue (hereinafter referred to as 'my residual estate') to my Trustee UPON TRUST as follows:
(i) To establish a fund ('the Fund') to consist of:
(a) all my shares in any company of which I am a shareholder;
(b) all my units in any Trust of which I am unitholder;
(c) the proceeds of any life insurance/assurance policy or superannuation fund in which I have an interest;
(d) all and any interest I have in any real property;
(e) all income earning investments of whatsoever nature;
(f) any income or capital added to the Fund from time to time;
and to invest the Fund as authorised by law or any clause in this Will and to pay all or part of the income, capital and capital accretions of the Fund to my children during the subsistence of the Fund and upon the younger of my children attaining the age of eighteen (18) years to pay the balance (if any) of the Fund to my children as tenants in common in equal shares.
(ii) As to the remainder of my residual estate not hereinbefore otherwise disposed of to my Trustee UPON TRUST for such of my children as shall survive me and attain the age of eighteen (18) years as tenants in common.
16 On 12 May 2012, Mrs Loretta Caratti passed away.
17 On 19 June 2012, probate of the Will in common form was granted to the applicant as executor of the Will (respondent's bundle of documents page 23).
18 On 13 November 2013, a Land Tax Notice of Assessment was issued in the name of Mrs Loretta Carratti with a 100% residential exemption being granted in relation to the properties under s 21 of the LTA Act.
19 On 14 November 2014, as part of an audit investigation commenced by the Commissioner to review the residential exemptions granted in relation to the properties, the Commissioner wrote to Mrs Loretta Caratti seeking information relating to the application of s 21 of the LTA Act to the properties.
20 On 27 November 2014, Mr Michael Caratti replied to the Commissioner, providing information about the physical aspects of the properties (respondent's bundle of documents pages 13 to 16).
21 On 12 January 2015, during a telephone conversation with Mr Michael Carratti, the Commissioner learned that Mrs Loretta Carratti had passed away.
22 On 27 January 2015, the applicant, as executor, then applied for an exemption from land tax in relation to the properties pursuant to s 22 of the LTA Act for the 2013 assessment year and beyond.
23 On 6 February 2015, the Commissioner finalised her audit investigation and concluded that the primary residence exemption under s 21 of the LTA Act should be removed from the properties. Her decision was that a reassessment for land tax should be issued in relation to the 2013/2014 assessment year and an original assessment for land tax should be issued in relation to the 2014/2015 assessment year.
24 On 1 April 2015, the applicant objected to the Commissioner's decision that no exemption from land tax was applicable to the properties for the '2014/2015 assessment year' (respondent's bundle of documents pages 41 to 44). An error was made in this letter in that the applicant was also objecting to the 2013/2014 reassessment but only referred to the 2014/2015 assessment.
25 Also, on 1 April 2015, the applicant declared a Statutory Declaration (respondent's bundle of documents pages 45 to 46) stating amongst other things:
7. On or about July 2010 Loretta was diagnosed with terminal breast cancer. Her treating oncologists prognosed that her illness would cause her death to occur within about 2 years.
8. On or about mid March 2012, at the Property, Mrs Caratti said to my children (Michael Neal Caratti, Aaron Grant Caratti, Rebecca Ann Caratti and Nathan John Caratti) and I; 'I don't have long left now, what do you think you will do with the house?' By 'the house' she meant [the properties]. I replied to her 'It will be hard to leave this place, it is our home.' She then said; 'you and Michael stay here as long as you want to'.
9. My four children (Michael Neal Caratti, Aaron Grant Caratti, Rebecca Ann Caratti and Nathan John Caratti) were present during this conversation and by words spoken agreed with Mrs Caratti and myself that Michael and I should be allowed to live at the Property for as long as we wish.
26 On 22 May 2015, the Commissioner disallowed the objection.
27 On 10 July 2015, the applicant applied to the State Administrative Tribunal for review of the Commissioner's decision on objection.
Issues
28 The applicant formulates the relevant issues to be determined by the Tribunal as follows:
(a) Should the residential property comprising [the properties] be granted a full exemption from land tax under section 22 of the [LTA Act] for the assessment years ending 30 June 2014 or 30 June 2015 (the Assessment Years), or alternatively;
(b) Should the properties be granted a partial exemption (of 25%) from land tax under section 23A of the [LTA Act] for the Assessment Years?
29 The Commissioner agrees, but says that, in relation to the 2013/2014 reassessment, the following sub-issues also arise:
(a) Whether the Commissioner had the power to make a reassessment for land tax for the 2013/2014 assessment year. This sub-issue will depend upon:
(i) Whether the original assessment for land tax for the 2013/2014 assessment year (i.e. that the properties were exempt under section 21 of the [LTAA]) was incorrect within the meaning of section 16(2)(a) of the TAA; and
(ii) If so, was the Commissioner precluded under section 16(5) of the TAA from making the reassessment?
and
(b) If the answer to (a) is yes, was the Commissioner's decision to make that reassessment the correct and preferable decision in the circumstances?
(respondent's statement of facts, issues and contentions, paragraph 21)
30 However, these sub-issues were not part of the applicant's application, nor were they included in the applicant's objection or in the Commissioner's decision the subject of this review proceeding.
31 The applicant through counsel confirmed at the final hearing that he is not pursuing the matters raised in these sub-issues (T:8; 31.05.16). I do not intend to consider them any further.
Legislation
32 The relevant provisions of the LTA Act are as follows:
5. Taxable land
Land tax is payable, in accordance with the land tax Acts, for each financial year for all land in the State except land that is exempt under section 17.
7. Liability to pay land tax
(1) Land tax payable on land for an assessment year is payable by the person who is or was the owner of the land at midnight on 30 June in the previous financial year.
…
17. Exempt land
(1) Land is exempt from land tax for an assessment year if
(a) the Commissioner grants an exemption for the assessment year under section 20; or
(b) it is exempt for the assessment year under another provision of this Part.
(2) Unless this Part provides otherwise, an exemption under a provision of this Part referred to in subsection (1)(b) applies, in accordance with section 18, to the whole or part of a lot or parcel of land.
19. Applying for exemption or concession
The Commissioner may require an owner of land
(a) to lodge an application in the approved form for an exemption or concession under this Part; and
(b) to give the Commissioner any information within the owner's knowledge or control that is relevant to deciding whether or not the land is eligible for an exemption or concession.
20. Commissioner's power to exempt land
(1) A taxpayer may apply to the Commissioner for an exemption, concession or further concession for any of the following land
(a) any proportion of private residential property that is used by an individual for a purpose that is not an exempt purpose, where the private residential property is exempt to some extent under section 21, 22 or 23 because of its use by the individual as his or her primary residence as provided in the respective section;
…
(2) The Commissioner may grant the exemption, concession or further concession for the whole or part of a lot or parcel of land the subject of an application under subsection (1) if the Commissioner is satisfied that there are reasonable grounds for doing so.
(3) If the Commissioner refuses to grant the exemption or concession, the applicant may appeal to the Minister against the Commissioner's decision.
…
21. Residences owned by individuals, exemptions for
(1) Private residential property (except property held in trust) is exempt for an assessment year if, at midnight on 30 June in the financial year before the assessment year, it is owned
(a) by an individual who uses it as his or her primary residence; or
(b) by a husband and wife, at least one of whom uses it as his or her primary residence; or
(c) by persons who have lived in a de facto relationship with each other for at least 2 years, whether or not they still live on that basis, at least one of whom uses it as his or her primary residence.
(2) However, if the property is also owned by another person or persons, it is exempt if each owner who does not use it for that purpose is an owner only because of a requirement by a financial institution for a guarantee of money advanced on the security of the property.
…
22. Residence owned by executor etc., exemption for if beneficiary in will exercising right to reside
Private residential property is exempt for an assessment year if, at midnight on 30 June in the previous financial year
- (a) it is owned by an executor or administrator of a will as trustee; and
(b) an individual identified in the will
(i) is entitled under the will to the property as a tenant for life; or
(ii) has a right under the will to use the property as a place of residence
(I) for as long as he or she wishes; or
(II) for a fixed or ascertainable period,
whether or not the individual is or may become entitled under the will to ownership of all or part of the property at some future time;
- and
(c) the individual uses the property as his or her primary residence.
23A. Residence owned by executor etc., exemption for if beneficiary in will has right to future ownership and is resident
(1) Private residential property is exempt for an assessment year if at midnight on 30 June in the previous financial year
(a) the property is owned by the executor or administrator of an individual's estate; and
(b) an individual identified in the will (the beneficiary) is entitled under the will to ownership of all or part of the property at a fixed or ascertainable future time; and
(c) the beneficiary uses the property as his or her primary residence.
(2) However, if the beneficiary's future entitlement is to ownership of part only of the property, then the exemption applies to the proportion of the property to which the beneficiary will become entitled.
(3) If
(a) land is exempt under this section for a financial year;
and
(b) at midnight on 30 June in that financial year the beneficiary is not using the property as his or her primary residence,
the executor or administrator must notify the Commissioner to that effect within 3 months after that 30 June.
Penalty: $5 000.
owner
(a) in relation to land (except an interest in a home unit), means a person who is entitled to the land for any estate of freehold in possession; or
(b) in relation to an interest in a strata title home unit, means the proprietor of the lot as defined in the Strata Titles Act 1985; or
(c) in relation to a nonstrata home unit, means a person who is entitled to an exclusive right to occupy the home unit because the person
(i) is a shareholder in the body corporate which owns the land on which the building containing the home unit is erected; or
(ii) is the registered proprietor of an undivided share in the land on which the building containing the home unit is erected;
(d) in relation to any liability to pay land tax for land (including an interest in a home unit), if a person or body is taken to be the owner of the land under section 8, means the person or body[.]
parcel means 2 or more lots of land that are treated as a single property under clause 2;
primary residence, in relation to an individual, means the individual's sole or principal place of residence;
private residence means a building or part of a building that was occupied, or fit to be occupied and intended by the owner to be occupied, as a place of residence of one or more individuals, except a building or part of a building that is
(a) used as a hotel, motel, hostel, lodging house or boarding house; or
(b) ordinarily used for holiday accommodation; or
(c) used as an educational institution, college, hospital or nursing home; or
(d) used as a club; or
(e) used as a home for aged or disabled persons by an eligible organisation within the meaning of the Aged or Disabled Persons Care Act 1954 of the Commonwealth; or
(f) prescribed or of a prescribed class;
private residential property means
(a) a lot of land on which there is a private residence; or
(b) a parcel of land on which there is a private residence constructed so that part of the residence stands on each of the lots of land that constitute the parcel; or
(c) an interest in a home unit; or
(d) for the purposes of sections 24, 24A, 27, 27A and 28 a lot of land on which a private residence is being or has been constructed[.]
34 The relevant provisions of the Trustees Act 1962 (WA) (Trustees Act) are as follows:
24. Residence for beneficiary, power to invest in etc.
(1) Subject to the instrument creating the trust, a trustee may
(a) invest any trust funds in the purchase of a dwelling-house for a beneficiary to use as a residence; or
(b) enter into any other agreement or arrangement to secure for a beneficiary a right to use a dwellinghouse as a residence.
(2) Despite the terms of the instrument creating the trust, a trustee may, if to do so would not unfairly prejudice the interests of the other beneficiaries, retain as part of the trust property a dwelling-house for a beneficiary to use as a residence.
(3) A dwelling-house purchased, retained or otherwise secured for use by the beneficiary as a residence may be made available to the beneficiary for that purpose on such terms and conditions consistent with the trust and the extent of the interest of the beneficiary as the trustee thinks fit.
(4) The trustee may retain a dwelling-house or any interest or rights in respect of a dwelling-house acquired under this section after the use of the dwelling-house by the beneficiary has ceased.
(5) In this section dwelling-house includes
(a) any building or part of a building designed, or converted or capable of being converted, for use as a residence;
and
(b) any amenities or facilities for use in connection with the use of a dwelling-house.
(1) Subject to the provisions of this section, every trustee, in respect of any property for the time being vested in him, may
…
(c) postpone the sale, calling in, and conversion of any property that he has a duty to sell, whether or not it is of a wasting, speculative or reversionary nature; but, in the case of property of a wasting or speculative nature, for no longer than is reasonably necessary to permit its prudent realisation;
…
13. Assessments
(1) An assessment is a determination
(a) of the amount of tax payable under a taxation Act or of a portion of such an amount; or
(b) that no tax is payable; or
(c) that a person is liable to pay tax or is exempt from liability to pay tax; or
(d) that an instrument, event or transaction is liable to tax or is exempt from tax.
(2) An assessment may be made in relation to any one or more, or all, of the components of the tax payable by a taxpayer.
(3) The receipt by the Commissioner of an amount as payment of tax does not constitute an assessment of tax liability.
16. Reassessments
(1) The Commissioner must make a reassessment
(a) if specifically required to do so under a taxation Act; or
(b) if specifically required to do so under a direction given in the course of review proceedings; or
(c) if a taxation Act provides for a rebate or refund of tax in particular circumstances, and the circumstances were not taken into account when the previous assessment was made.
(2) Subject to subsection (5), the Commissioner may also make a reassessment
(a) on his or her own initiative, if it appears that a previous assessment is or may be incorrect for any reason; or
(b) on the application of the taxpayer.
(3A) Despite subsections (1) and (2), the Commissioner cannot make a reassessment in relation to an interim assessment unless specifically required to do so by section 39(1) or a direction given in the course of review proceedings.
(3B) A reference in this Act to an assessment following an interim assessment does not include a reference to a reassessment of an interim assessment.
(3) A reassessment may be made whether or not any amount of tax has been paid on the previous assessment.
(4) A reassessment may consolidate 2 or more separate assessments into a single assessment.
(5) If an assessment is based on a particular interpretation of the applicable law or a particular practice of the Commissioner that was generally applied to assessments of that kind when the assessment was made, then the Commissioner cannot make a reassessment based on the ground that the interpretation or practice is or was erroneous.
40. Right of review by State Administrative Tribunal
(1) A person dissatisfied with the Commissioner's decision on an objection or on an application for an extension of time for lodging an objection may apply to the State Administrative Tribunal for a review of the decision.
(2) A person ceases to be entitled to apply to the State Administrative Tribunal for a review of a decision on an objection against an interim assessment if the assessment following the interim assessment is made before the person makes an application under subsection (1) for a review of the decision.
(3) Subsection (1) does not apply to, or in respect of, a decision if this Act expressly provides that the decision is not subject to review under this Act.
27. Nature of review proceedings
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
29. Tribunal's powers in review jurisdiction
(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
(2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3) The Tribunal may
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and
(i) substitute its own decision; or
(ii) send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
- and, in any case, may make any order the Tribunal considers appropriate.
…
37 The parties' respective positions are as follows.
Commissioner
38 The Commissioner accepts that, for both the 2013/2014 assessment year and the 2014/2015 assessment year (together the Assessment Years):
a) the properties constitute 'private residential property';
b) the properties were owned by the executor of the Will as trustee for the purposes of s 22 and s 23A of the LTA Act; and
c) the applicant and Mr Michael Caratti use the properties as their primary residence.
39 However, in relation to s 22 of the LTA Act, the Commissioner contends (respondent's statement of facts, issues and contentions at paragraph 63) that no individual identified in the Will has a right under the Will (Commissioner's emphasis) to use the properties as a place of residence. Therefore an exemption under s 22 of the LTA Act is not applicable for the Assessment Years.
40 In relation to s 23A of the LTA Act, the Commissioner contends (respondent's statement of fact, issues and contentions at paragraph 99) that no individual identified in the Will is entitled under the Will to ownership of all or part of the properties at a fixed or ascertainable future time. Rather, there were individuals identified in the Will presently entitled under the Will to ownership of the properties (Commissioner's emphasis). Accordingly, an exemption under s 23A is not applicable for the Assessment Years.
The applicant
41 The applicant, on the other hand, contends that the properties are fully exempt from land tax for each of the Assessment Years under s 22 of the LTA Act or partially exempt from land tax for each of the Assessment Years under s 23A of the LTA Act.
42 The applicant says that, immediately prior to the date on which Mrs Caratti passed away, Mrs Caratti, the applicant and Mr Michael Caratti were using the properties as their primary residence and family home.
43 Following the grant of probate, the applicant submits that there is no restriction upon his right to retain the properties prior to sale. The applicant says that under clause 8(i) of the Will, notwithstanding the trust to sell the properties contained in clause 3 of the Will, the applicant as trustee has the right to retain the properties in his absolute discretion for as long as he wishes or indefinitely. The applicant cites O'Brien v Warburton[2012] WASC 82 and Re Crowther[1895] 2 Ch 56 as authority for this proposition.
44 The applicant then says that s 24 of the Trustees Act empowers the applicant as trustee to retain a dwelling house for a beneficiary to use as a residence and that he and Mr Michael Caratti in fact used the properties as their primary residence and family home for the Assessment Years.
45 The applicant submits that the discretion granted by clause 8(i) of the Will to retain real property is a 'right under the will' for the purposes of s 22 of the LTA Act. The applicant also says that the power to retain a dwelling house for a beneficiary to use as a residence under s 24 of the Trustees Act is also a 'right under the will' for the purposes of s 22 of the LTA Act.
46 The applicant says that the terms of the Will are to be construed in the circumstances of a prudent testator making allowance for the accommodation of a surviving husband and children where she is the sole registered proprietor of the family home.
47 Given the circumstances that prevailed as at the date of execution of the Will, the applicant submits that Mrs Caratti both contemplated and, on the proper construction of clause 8(i) of the Will, expressed the intention that, following her death, the applicant and such of her children who had survived her and wished to do so should be entitled to continue to use and retain the properties as a primary residence and family home at the applicant's discretion. The applicant's Statutory Declaration dated 1 April 2015 is, he says, evidence to support this conclusion.
48 The applicant therefore considers that the properties are exempt from land tax for the Assessment Years because both he and Mr Michael Caratti were using the properties as their primary place of residence as at midnight on each of 30 June 2013 and 30 June 2014 and that they had a right under the Will to do so.
49 Alternatively, if the properties were not exempt by virtue of s 22 of the LTA Act, the applicant says that the properties are partially exempt from land tax for the Assessment Years under s 23A of the LTA Act because:
a) at all material times the properties were a private residential property;
b) at all material times following the death of Mrs Caratti, the properties were owned by the applicant as executor of Mrs Caratti's estate;
c) by the terms of clause 8(i) of the Will, the applicant has the right to retain the properties in his absolute discretion for as long as he wishes;
d) under s 24 of the Trustees Act the trustee has the power to retain the property as a dwelling-house for a beneficiary to use as a residence;
e) Mr Michael Caratti was living at and using the properties as his primary place of residence as at midnight 30 June 2013 and as at midnight 30 June 2014;
f) Mr Michael Caratti is the child of Mrs Caratti;
g) as a living child, Mr Michael Caratti is an individual identified in the Will of Mrs Caratti.;
h) Mr Michael Caratti is one of four surviving children of Mrs Caratti;
i) Mr Michael Caratti is beneficially entitled to one quarter of beneficial ownership of the trust estate at an ascertainable future time; and
j) the ascertainable future time is the date of distribution of the proceeds of the estate in accordance with the terms of the Will.
50 The applicant says that all four of the children were over the age of 18 years on 12 May 2012 and are therefore entitled to ownership of the properties at an ascertainable future time, namely upon the distribution of the estate.
51 Therefore, pursuant to s 23A of the LTA Act, the applicant is entitled to a 25% exemption from land tax for the Assessment Years.
Disposition
Interpretation of the LTA Act - general principles to be applied
52 As Buss JA said in Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211 (Abbotts) at [160]:
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. (citations omitted)
53 The same approach to statutory interpretation in Western Australia was taken by Edelman J in Commissioner of the Australian Federal Police v Courtenay Investments Ltd [No 2] [2014] WASC 55 where his Honour said at [14]:
The key integers in the exercise of determining the effect of Parliament's intention in s 64(2) are statutory text, context, and purpose. The starting point, and the end point, is the text. But, although the statutory text is the 'surest guide' to Parliament's intention, the text must be read in the widest sense of context, including the general purpose and policy of the provision.
54 I may also have regard to extrinsic material without necessarily invoking the provisions of s 19 of the Interpretation Act 1984 (WA). As Buss JA also said in Abbotts at [91]:
At common law (that is, independently of s 19 of the Interpretation Act), this court is permitted, in construing a statutory provision, to have regard to the words used by Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the legislative history of the provision and any relevant reports of law reform bodies which describe the matters requiring legislative reform. (citations omitted)
55 Accordingly, the starting point of the statutory construction of s 22 and s 23A of the LTA Act is a consideration of the text itself, in its proper statutory context.
56 The proper statutory context of a provision includes:
a) the relevant Act as a whole;
b) the general purpose, policy and legislative history of the provision; and
c) the mischief which a statute was intended to remedy; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Abbotts at [91].
57 However, legislative history and extrinsic materials cannot be relied upon to displace the clear meaning of the text; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at [39]. Furthermore, taxation statutes, including the LTA Act, are to be interpreted in a technical manner; Charles Lloyd Property Group Pty Ltd v Commissioner of State Revenue (2011) 84 ATR 775 at 781; Commissioner of State Revenue v Landrow Properties Pty Ltd (2010) 79 ATR 800 at 816.
Interpretation of s 22 of the LTA Act
58 The Commissioner has helpfully provided in her statement of facts, issues and contentions a useful summary of the legislative history, policy and purpose of the exemption in s 22 of the LTA Act. I consider that it is complete and accurate and I repeat that summary here.
59 Section 22 of the LTA Act as first enacted in 2002 stated:
Private residential property is exempt for an assessment year if, at midnight on 30 June in the previous financial year -
(a) it is owned by an executor of a will as trustee;
(b) an individual identified in the will has a right under the will to use the property as a place of residence for as long as he or she wishes, but is not entitled under the will to any estate of freehold in possession of the property; and
(c) the individual uses the property as his or her primary residence.
60 The explanatory memorandum that accompanied the Land Tax Assessment Bill 2001 (WA) explained in relation to cl 22:
This clause provides an exemption for land owned solely or jointly by one or more executors as trustees of a will.
There are a number of conditions in order for the exemption to apply. The conditions must be met as at midnight on 30 June in the previous financial year (ie midnight on 30 June 2002 for the 2002/2003 financial year).
Paragraph (a) requires that the property be owned by an executor of a will as trustee. To be an owner under this clause, the legal title of the property must be vested in the name of the executor. In this regard, section 8 of the Administration Act provides that all real estate a deceased person owned at his death as from the date of death passes and vests in the executor or administrator to whom probate has been granted.
Paragraph (b) requires that an individual identified in the will must have a right under the will to use the property as a place of residence for as long as he or she wishes. The individual must not be entitled under the will to any estate of freehold in possession of the property. This exclusion means that an individual who is entitled to a life or remainder interest under a will would not be entitled to this exemption.
Paragraph (c) requires that the individual use the property as his or her primary residence. This requirement means that the exemption would not be available if the individual no longer occupied the land as his or her primary residence.
A proportionate exemption will apply under clause 18 where the land is owned by an executor or executors as detailed in subclause (1) and one or more other persons.
61 Section 22 of the LTA Act was then amended in 2003 by the Business Tax Review (Assessment) Act 2003 (WA). Section 8 of that Act deleted paragraph (b) of s 22 and inserted a new paragraph (b):
(b) an individual identified in the will -
(i) is entitled under the will to the property as a tenant for life; or
(ii) has a right under the will to use the property as a place of residence for as long as he or she wishes, but is not entitled under the will to any estate of freehold in possession of the property[.]
PART 3 - LAND TAX EXEMPTION FOR LIFE TENANTS
As a result of amendments to implement the 2001/02 Budget, an executor or administrator of a deceased estate owning land as trustee for an individual who has a life interest in a property that is their principal place of residence, is liable for land tax on the property. This outcome is inconsistent with the policy intent of the amendments.
This amendment will restore equity with executors or administrators of deceased estates who, as trustees, own land which is exempt from land tax because the property is the primary residence of an individual who has a right of residence under a Will.
The following conditions must be met at midnight 30 June for the exemption to apply for the following land tax assessment year (eg 30 June 2003 for the 2003/04 land tax assessment year):
• an executor of a Will as trustee must own the property. To be an owner for the purposes of the exemption, the legal title must be vested in the name of the executor. Section 8 of the Administration Act 1903 provides that all real estate of a deceased person owned at his death, as from the date of death, passes and vests in the executor or administrator to whom probate has been granted;
• an individual identified in the will must have an equitable interest in the estate of freehold in possession as a life tenant for the term of their own life or that of another;
• the individual must use the property as their principal place of residence. This condition means that the exemption will not be available if the life tenant does not occupy the land as their primary residence.
A partial exemption will apply under section 18 of the Act where an executor or administrator owns land, as identified by this section, together with others, or where part of the land is occupied for non-exempt purposes.
…
Clause 8: Land Tax Assessment Act 2002 amended
Subclause (1) specifies that the amendments effected in this section are to the Land Tax Assessment Act 2002.
Subclause (2) deletes section 22(b) and inserts a new paragraph (b). The new paragraph is required to allow an exemption from land tax for private residential property owned by an executor or administrator as trustee, where an individual identified in a Will has an equitable interest in the freehold as a life tenant and uses the property as his/her primary residence.
63 Section 22 of the LTA Act was then amended in 2008 by the Revenue Laws Amendment Act 2008 (WA). Section 12 of that Act made a minor amendment to s 22 as well as two significant amendments namely, accommodating 'administrator' owners and, secondly, deleting paragraph (b)(ii) and inserting instead:
(ii) has a right under the will to use the property as a place of residence -
(I) for as long as he or she wishes;
or
(II) for a fixed or ascertainable period, whether or not the individual is or may become entitled under the will to ownership of all or part of the property at some future time;
Clause 12: Section 22 amended
This clause amends section 22 of the Act.
Paragraph (a) amends section 22 to clarify that the exemption can be applied to property owned by an executor or administrator.
The current provisions of the Act provide an exemption for private residential property that is owned by the executors of a will as trustee and an individual who has a life tenancy or a right to reside for as long as he or she wishes under the will and uses the property as their primary place of residence.
In the majority of circumstances, the property in question will be owned by an executor of a will.
However, in some cases, it might be that the property is owned by an administrator, such as when the person nominated as the executor declines to act or is unable to administer the estate of the deceased. This amendment ensures consistency between the provisions in sections 22, 23A and 23.
Paragraph (b) replaces section 22(b)(ii).
In 1995, the Land Tax Assessment Act 1976 was amended to deem a person who had the right to reside in the property under a will as 'owner' of the land. By deeming this person to be an owner, and where the person occupied the property as his or her principal place of residence, even though they may not be entitled to any estate of freehold in possession, the principal place of residence exemption for land tax applied. A person who may have also had a contingent right to ownership or part ownership of the land at a later date was not denied the exemption.
When the provisions were rewritten by the Land Tax Assessment Act 2002, the wording changed and the provision became capable of being interpreted more narrowly, despite there being no change to the policy intent.
This amendment ensures that the land tax exemption is granted in the circumstances intended when it was first operative.
Such a circumstance may occur, for example, where a will specifies that a deceased person's daughter is to receive a right to reside in the family home until she marries. Upon her marriage the right of occupancy ceases, but she is then entitled to a proportionate interest in the residue of the estate in equal shares with her brother. This amendment clarifies that despite the fact that she is entitled to a share in the residue of the estate, an exemption applies for the period she lives in the family home in accordance with the right of occupancy granted under the will.
Paragraph (b) also clarifies the period that a person who is granted a right of occupancy under a will may use the property as a place of residence.
The amendment has been made to ensure that the exemption is available in situations where one or more persons are given consecutive rights to reside.
For example, two siblings are granted the right to reside at a property under their father's will, for two distinct time frames after his death.
The elder sibling has been granted the right to reside at a property for a period of 5 years from the date of his father's death, and after this period the right to reside at the property is granted to the younger sibling for as long as she wishes.
Under the current wording of section 22, the property will be exempt for only the period the younger sibling is residing at the property, but not when the elder sibling is residing at the property.
This amendment ensures that exemption will also apply in situations where a will provides for a specific period of occupancy.
Paragraph (c) makes a minor grammatical amendment.
Was the land completely exempt under s 22 of the LTA Act?
65 For the properties to be exempt from land tax for the Assessment Years under s 22 of the LTA Act, I must be satisfied that both at midnight on 30 June 2013 and at midnight on 30 June 2014:
a) the properties were owned by the applicant as an executor of the Will as trustee;
b) an individual identified in the Will;
(i) is entitled under the Will to the properties as a tenant for life; or
(ii) has a right under the Will to use the properties as a place of residence -
(A) for as long as he or she wishes; or
(B) for a fixed or ascertainable period,
- whether or not the individual is or may become entitled under the will to ownership of all or part of the properties at some future time; and
66 The element identified in (a) above is not in dispute and in any event is clearly satisfied: at the relevant dates, the applicant owned the properties as an executor of the Will as trustee. Element (c) is also satisfied. The parties agree, and there is nothing to suggest to the contrary, that the applicant and Mr Michael Caratti are and were at the relevant dates using the properties as their primary residence.
67 In relation to element (b), it is the applicant's case that that he and Mr Michael Caratti have a right under the Will to use the properties as a place of residence for as long as they wish. The Commissioner says that the applicant and Mr Michael Caratti under the Will had no such right.
68 I accept the Commissioner's submission that the term 'a right under' the Will when given its ordinary meaning is a right in accordance with the terms of the Will.
69 I also accept the Commissioner submission that the words of a will admitted by the court of probate are conclusive of the contents of that will. In this case the Supreme Court as the court of probate granted probate to the applicant in common form. Common form grants apply where a will's validity is not in dispute.
70 I do not understand the applicant to be arguing, as the Commissioner submits (respondent's statement of fact, issues and contentions at paragraph 82), that the deceased amended the Will orally prior to her passing. Instead, I understand that the applicant points to his Statutory Declaration as evidence of what the deceased intended to be the effect of clause 8(i) of the Will.
71 What is relevant, however, is what the written words the deceased used mean in this case: Perrin v Morgan[1943] AC 399 at 406; Hatzantonis v Lawrence[2003] NSWSC 914 at [6].
72 Where a duty to sell property is accompanied by a power to postpone sale or a power to retain the property, the duty is to sell at a fair price within a reasonable time: O'Brien v Warburton[2012] WASC 82 at [103].
73 The written words of the Will create a trust for sale. The trustee is directed to sell and convert into money all of the deceased's property, real and personal, other than property 'not hereinbefore otherwise disposed of' (namely the deceased's jewellery). After payment of debts and duties, the residue is to be held in trust and paid to her children once they are all 18 years old. The trustee is to establish a 'Fund' with the residue, although despite the direction for sale of the deceased's assets, the Fund is expressly stated to include, amongst other things, the deceased's real property. The trustee has a power (clause 8(i)) to postpone the sale of the properties.
74 Importantly, the words of the Will do not in my opinion give rise to a right, to an individual identified in the Will, to use the properties as a place of residence. Even if such a right were created, this would not be a right to use the properties indefinitely, given the duty to sell within a reasonable time.
75 In relation to the applicant's argument concerning s 24 of the Trustees Act, I accept that s 24 of the Trustees Act empowers the trustee to enter into an arrangement to allow a beneficiary to use a house as a residence. However, that is a power of the trustee and there is no duty or obligation on the trustee to provide a place of residence. Therefore, there is no correlative right for a beneficiary under a will to use a property as a place of residence.
76 In the light of my conclusion that the written words of the Will do not give rise to a right under the Will to use the properties as a place of residence, I find that the exemption under s 22 of the LTA Act does not apply.
Interpretation of s 23A of the LTA Act
77 The text of s 23A of the LTA Act is set out above, as are the definitions of 'private residential property' and 'primary residence' which are contained in the Glossary to the LTA Act.
78 The term 'under the will', as previously outlined, has its ordinary meaning of 'in accordance with' the will.
79 The term 'ownership' is not defined in the LTA Act. However, by virtue of s 9 of the Interpretation Act 1984 (WA), the word 'ownership' has a corresponding meaning to 'owner' which is statutorily defined in cl 1 of the Glossary to the LTA Act. 'Owner' is defined to mean 'a person who is entitled to the land for any estate of freehold in possession'.
80 Again, the Commissioner has helpfully provided in her statement of facts, issues and contentions a useful summary of the legislative history, policy and purpose of the exemption in s 23A of the LTA Act. I repeat that summary here and again accept that it is complete and accurate.
81 Section 23A of the LTA Act was enacted in 2008 as it is currently worded.
82 The explanatory memorandum that accompanied the enacting Bill, the Revenue Laws Amendment Bill 2008 (WA), explained in relation to the new section 23A:
This clause inserts new section 23A after section 22 to implement recommendation 2.4.4 of the State Tax Review. The relevant discussion of this issue is found at page 54 of the May 2007 State Tax Review Final Report.
Section 23A - Private residential property owned by an executor or administrator - beneficiary with a right to future ownership
Subsection (1) provides an exemption for private residential property in a particular assessment year if at midnight on 30 June in the previous financial year the following criteria are met:
(a) the property is owned by the executor or administrator of an individual's estate; and
(b) an individual identified in the will (which may be either by use of a specific name or reference to a class of identifiable persons) is entitled under the will to ownership of all or part of the property at a fixed or ascertainable future time; and
(c) the beneficiary uses the property as his or her primary residence.
This amendment covers circumstances where, for example, a mother dies and leaves the family home to her son. Her will specifies that the son becomes entitled to freehold possession of the home at age 25. The trustee or administrator of the will permits the beneficiary to occupy the property as his primary residence until ownership passes to the beneficiary.
Prior to the amendments made in clause 12 above, the current exemption found in section 22 of the Land Tax Assessment Act would not apply to provide an exemption for the property up until the time the beneficiary turns 25, despite the fact that he is living in the home as his principal place of residence and will eventually become entitled to it when he reaches the age specified in the will.
Subsection (2) provides for a proportionate land tax exemption in the circumstances when a beneficiary identified in the will has a future entitlement, but it is only to a part interest in the property. An example of when this may arise is where more than one child has a future entitlement to the property owned by a parent, and only one of them has been granted permission to occupy the property.
…
83 The relevant extract from the State Tax Review Final Report provides as follows:
Introduce a Principal Place of Residence Land Tax Exemption for Individuals Who Have a Future Right to a Property Under the Terms of a Will
The Interim Report did not consider this issue as it was not raised in Stage 1 of the Review. The issue has arisen because a situation has been identified where a beneficiary under a will was prevented from taking ownership of a property until they reach a specified age and, although the beneficiary resided in the property as their principal residence prior to reaching that age, no exemption was available to the executor of the will as trustee.
…
Stage 2 Analysis
Providing a land tax exemption in the circumstances outlined above would be consistent with the policy of providing a land tax exemption for a person's PPR. On this basis, it is considered appropriate to introduce an exemption, subject to certain conditions to protect the integrity of the exemption.
The land tax exemption would be provided where private residential property is owned by an executor of a will as trustee and an individual (the beneficiary) resides in the property as their primary residence, but the terms of the will prevent the individual from taking ownership of the property until a certain and definable future date specified in the will.
2.4.4 Final Recommendation
A PPR exemption should be introduced in certain circumstances for individuals who have a future right to a property under the terms of a will.
Was the land partially exempt under s 23A of the LTA Act?
84 For the properties to be wholly or partially exempt under s 23A of the LTA Act, I must be satisfied that at midnight on both 30 June 2013 and 30 June 2014:
a) the properties were owned by the applicant as executor of Mrs Caratti's estate; and
b) an individual identified in the Will (the beneficiary) is entitled under the Will to ownership of all or part of the properties at a fixed or ascertainable future time; and
c) the beneficiary uses the properties as his or her primary residence.
85 In this case, element (a) is clearly satisfied. It is not in dispute that the applicant owns the properties and is executor of the deceased's estate. Further, element (c) is satisfied because Mr Michael Caratti as a beneficiary of Mrs Caratti uses the properties as his primary residence.
86 However, the applicant says that Mr Michael Caratti had an entitlement under the Will to ownership of 25% of the properties at an ascertainable future time (upon the distribution of the estate) as all four beneficiaries had already attained 18 years of age prior to the deceased's passing.
87 I respectfully disagree.
88 It is clear and not disputed that at the time of Mrs Caratti's passing, all of her children had attained 18 years of age. Accordingly, under the Will they were all presently entitled to ownership of the properties. There is nothing in the statutory context of s 23A of the LTA Act or in the text itself to persuade me that it applies in situations where an individual identified under the Will is otherwise presently entitled under the Will to the property except for the fact that the property has not yet been distributed by the executor.
89 I therefore conclude that an exemption under s 23A of the LTA Act is not available to the applicant.
Orders
1. The applicant's application is dismissed.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
8
10